Mr BEAZLEY (4:51 PM) —I move:

That the Speaker's ruling be dissented from.

Mr Speaker, I understand quite thoroughly the dilemma the government has placed you in, and I understand the difficulties you have in arriving at the decision you have arrived at. I also understand that you could not have anticipated in the very short time that you have had available to reflect on this matter all the precedents and all the issues that are entailed herein, and these are the problems that any Speaker would confront in your circumstances. But I would respectfully submit to you and the House in this regard that you are wrong. You are the victim of an extraordinary assault on parliamentary privilege by the executive. It is an extremely difficult position for a Speaker to be in, and you have to make up your mind on that. But the parliament also has the capacity to deliberate on your rulings in relation to standing orders, and it should do so now.

As I recollect, I was Leader of the House for about seven or eight years. In the course of that, at least on two or three occasions, cabinet documents were presented by the opposition, and on every occasion I did precisely what the Leader of the House did: demanded of the person who was citing from the alleged cabinet document to table the document. On each of those occasions, that was refused. It was refused for the obvious reason that the persons with that document wanted to protect the sources from whom they obtained it and the sources who were advising them in order that they be able to perform their duties of holding the executive accountable. That is why they repeatedly refused my requests that they table the documents when I was Leader of the House.

On a number of occasions they were cabinet documents and on other occasions they were not—nevertheless, they were documents from which they were arguing. On each occasion when I was refused, though we had the numbers in parliament, I never took this step, and they included cabinet submissions and other documents. In the 13 years we were in government and in the eight years I was Leader of the House—and though from time to time I suspect we were guilty of trampling individual members' rights—we always knew when we would take the precedent, our actions or our majority too far.

We know darn well that, from time to time, cabinet documents will have within them little curls and tricks which enable you to detect their source. They had it in our day and, no doubt, they have it now. In those circumstances we knew that, if we had used our parliamentary numbers to demand the return of those documents, we may well have advantaged ourselves as the executive. But we, as members of parliament as well as members of the executive, always had sufficient respect for this chamber, a sufficient sense of honour and a basic level of decency which prevented us from taking that step too far in terms of knocking over our political opponents. This is a level of restraint that the Leader of the House has not found himself capable of upholding.

I have not had the chance to study the precedents you cited, Mr Speaker, but the particular precedent you went to related to a royal commission document outside the gift of the chamber. This goes to a document that is in the hands of the executive and that the executive can peruse. It is not as though the executive requires this document for its information. It is the originator of this document. It requires this document, of course, to follow up its source. If this parliament gives up this document, it gives itself away.

There is no anticipation of this anywhere in our standing orders, and I would suggest that the precedents you cited do not actually come to that either. In the entire section of House of Representatives Practice relating to papers presented to the House, there is no reference to papers in these circumstances. It says:

In order to exercise effectively its responsibility to oversight the activities of the Executive Government, the Parliament needs to be kept informed of the Government's activities. The presentation of papers and reports by Ministers is very important to Parliament in fulfilling its critical role. It demonstrates the accountability of the Government to the Parliament and, through it, to the community. Papers presented to the House are important primary sources of information from which a Member may draw in asking questions and in making a useful contribution to debate. The presentation of a paper to the House places it on the public record.

So it goes to all the circumstances, and none of them includes documents in the hands of private members. The Leader of the House says, `We need to have your document in order to be able to authenticate it.' I would submit to you, Mr Speaker, that you have already ruled on that matter. If this were to be upheld on this occasion, it would be fair, every time a minister stands at the dispatch box and says that he is quoting from confidential papers, for the House to move a motion to require those papers to be tabled in order for the House to satisfy whether or not the individual authentication by the minister actually pertains to the truth.

Mr Speaker, you rightly ruled in question time that the same obligation, that the same standard of authentication, applies to the opposition as much as it does to the government. You rely on the word of the member that it is an authentic document. Therefore, on your own previous ruling in this place, it is not a requirement for this chamber to see this document in order to authenticate it.

Why do they want it? They want it in order to be able to burn a source of a document which has seriously embarrassed them. I spoke of my experience as Leader of the House in relation to the at least three occasions I can recollect where something similar happened to me. But if anything other than my experience had been in the gift or the opportunity of leaders of the House before me, or of anyone else in control of government business before me, there would have been precedents appearing in this book as to those occasions when governments of any particular political hue had asked for that documentation.

There is nothing here that in any way relates to it. To get at it, to get at anything that could be remotely regarded as perhaps a precedent for this that caused somebody writing on parliamentary practice to know something about, we have to go to the House of Commons. The truth of the matter is that our standing orders and our documentation associated with those standing orders basically refer back to Erskine May, although there are some precedents of practice in Australia which do not go to the practice of the House of Commons.

It is wonderful when you deal with these Liberals! They are supposed to be the constitutional party. They are supposed to be the party of conservatism that stand by appropriate practice and convention in this place—the party of convention. The moment a convention or practice is no longer acceptable to their executive, they seek from their backbench supine support. I am pleased to say that we did those sorts of things ourselves, once or twice.

I will tell you one thing I am proud of my father for. When Prime Minister Whitlam and Minister Cameron sought to remove Speaker Cope from the chair in a totally illegitimate way in another wrongful use of the executive power—though totally unrelated to this precedent—my father walked out of the chamber even though he was a minister. He took with him Gordon Scholes and he took with him a number of our members of parliament who would not stand with that. It will be an interesting test of the substance of Liberal Party members later today when this motion is ultimately determined. We will see how independent they truly are.

Let me go to Erskine May on this matter, and this was completely falsely quoted by the Leader of the House. He quoted the paragraph before it, which dealt with committee papers, but he refused to start at the top, at `Citing documents not before the House'. That is the starting point at which you would deal with the citing of documents not before the House.

The paragraph starts with the circumstances in which ministers would find themselves citing documents not before the House. It lays out that sort of precedent you deal with when you ask a minister about the issue of confidentiality. It goes to the extent that documents not before the House have executive privilege attached to them. Erskine May is pretty tough about it, but it does leave wriggle room at the end of the day for ministers to evade an obligation to table a document not before the House. It starts with ministers and, having proceeded through committees and others, it ends with individual private members of parliament in this way:

There is no rule to prevent members not connected with the government from citing documents in their possession, both public and private, which are not before the House, even though the House will not be able to form a correct judgment from partial extracts.

That is a very interesting point. Why would `a correct judgment from partial extracts' be there? It is there because obviously it anticipates that, when you are standing in this place citing a document, your opponents who have an interest in the debate would invite you to table such a document in order for them to establish whether your partial citing in fact reflected the true purpose of the document. A reasonable debating point to make, you would think.

But if the member of parliament chooses not to respond to that invitation, the member of parliament is protected. He is not obliged to do it. Indeed, any sense of obligation is a worry to the Speaker and the procedures of the House. Evidently, back in 1855 some member of parliament did it when invited by a minister to give him the document he was citing. Erskine May states:

A private member's action in handing a document to a minister in support of arguments was ruled to be very irregular.

That is the ruling from Erskine May. Who is being protected here by the fact that this unprecedented motion placed before the chamber has never been placed before? Mr Speaker, I would respectfully suggest to you that the precedence you cited had nothing to do with these particular propositions relating to a royal commission's papers. Relying on that in this particular case does not give you a precedent at all.

Individual members of parliament in this place, in protection of their constituents, will often cite anonymously individuals who have presented to them fears they have that have touched the hearts of the individual members of parliament as they perform their tasks on behalf of their constituents. You can think, for example, of a whole variety of reasons why an individual member of the electorate communicating with a member of parliament might not want their name cited or evidence provided as to their authenticity, beyond what the member is prepared to give.

That is, I suspect, one of the reasons why we see in Erskine May some obvious protection for a member of parliament in this situation. Constituents may feel their life might be threatened, their employment might be threatened, the employment of members of their family might be threatened or their standing within a particular organisation might be threatened. All these things are there to protect the capacity of an individual member of parliament to perform their functions as members of parliament. That is what protection there is for them here.

It is your concern that you should be able to hear the majority opinion of parliament on this matter. I would respectfully submit to you, Mr Speaker, that there are occasions when Speakers need to stand against what they anticipate might be the majority position of the parliament. There is no point at which a Speaker should be prepared to stand against that more thoroughly than to protect an individual member's rights. At the end of the day, the Speaker is not the servant of any particular majority of the House; he is the servant of the collective House—that is, the minority member as well as the majority. If it is the case that the individual member of parliament is irrelevant and that without the protection of standing orders any particular motion can be put forward, then the standing orders are irrelevant.

It is possible simply to rely on the majority of the parliament, if that is what you want to do, to overrule any particular standing order that stands here. That is a possible thing for you to do. You can go against any particular standing order, simply by relying on the majority and not ruling a particular proposition out of order. That is effectively what is happening here. Section 316, the only section which refers to the ordering of papers, states:

Papers may be ordered to be laid before the House, and the Clerk shall communicate to the Minister concerned all orders for papers made by the House; and such papers when received shall be laid on the Table by the Clerk.

That refers not to members of parliament, it refers exclusively to ministers. So you are in a very invidious position here, Mr Speaker—a terrible position. You are here, as usual, courtesy of an out of control Leader of the House. I know that it is the unfortunate and confused minister for education who moved this particular motion, but he has been wandering around in a daze—for understandable reasons—as his speech clearly indicated to this chamber, as he floundered away trying to defend what are obviously massive breaches of undertakings that he has given the Australian people, which are the subject of the censure motion about which this issue has arisen.

I absolutely exempt the minister from criticism for the cobbled together motion, drafted by the Leader of the House, which he has moved. This is a product of a chap who has no problem in dealing with ordinary Australians via guard dogs and boot boys. The Leader of the House has no problem with that in his portfolio. So it is not surprising that he has a similar attitude to the rights of individual members of parliament. The application of brute force is what is being applied here.

Mr Speaker, what you have here is a clear-cut situation that requires your direct intervention to protect us all. If you were to have ruled this out of order, you would have had ample opportunity to cite the precedents I have cited as to the reasons why you should do that. If you had sought to look at the past behaviour of governments, you would have seen ample precedent, from the time that we were in government and from the time when our predecessors were in government, that when cabinet documents were cited in that way—invited to be tabled, but not tabled—that, as Leader of the House, on at least several occasions, I had not taken advantage of the opportunity to direct the production of such documents, even though I was thoroughly aware in cabinet security matters of what advantages that might actually reveal to me.

If this motion to dissent from your ruling is carried, then everything will be fine. But if your ruling is upheld—in other words, if this motion is defeated—it is going to change for all time the character of the capacity of the individual member of parliament to perform his or her function. It will change it for all time. It will mean that, when some untoward behaviour has been detected within the executive—it goes beyond cabinet documents—the documents substantiating that can be forced to be tabled. And it may well be illegal activity. The person who is responsible for putting that in will be traced. If your ruling is upheld, it will be a very sad day for this parliament indeed. (Time expired)

Mr SPEAKER —Is the motion seconded?